IN THE COURT OF APPEAL OP TANZANIA

ATARUSHA

CORAM: OTHMAN, CJ.,LUANPA, J,A„ and MMILLA, 3.A.

CRIMINAL APPEAL N0.300 OF 20X1

KIMBUTE O TIN IEL............................................................................. APPELLANT

VERSUS

THE REPUBLIC................................................................................ RESPONDENT

(Appeal from the judgment of the High Court of Tanzania at Arusha.)

(Sambo, 3.)

dated3rd November, 2011

JUDGMENT OF THE COURT

21st November2014 & 25th April'2016.

MMILLA, 3.A.:

The appellant, Kimbute Otiniel instituted Criminal Appeal No. 300 of

2011 in the Court endeavouring to challenge the judgment of the High

Court of Tanzania at Arusha whichupheldthe conviction and sentence of

the District Court of Arusha (thetrial Court) in Criminal Case No. 665 of

2008 before which he was charged with rape contrary to section 130 (2)

(e) and 131 of the Penal Code Cap. 16 of the Revised Edition, 2002. He

was sentenced to a term of life imprisonment.

day the appellant appeared in person and fended for himself, while Mr.

Innocent Njau, learned State Attorney represented the respondent

Republic. We heard the parties and reserved our judgment.

In the course of deliberating the rival submissions of the parties, we

comprehended that we were faced with various conflicting authorities of

this Court regarding the legal and evidential consequences of the court of

first instance in allowing a child of tender years, as in the present case, to

give evidence in a criminal trial without first conducting a voire dire

examination as contemplated by section 127 (2) of the Evidence Act Cap. 6

of the Revised Edition, 2002 (the Evidence Act). The concern was whether,

as a consequence thereof, such evidence ought to be treated as unsworn

evidence, thus requiring corroboration in order to be relied upon, or in the

reverse, it was to be treated as worthless evidence which could be

discarded or expunged from the record.

In a ruling which was handed down on 25.11.2013, we expressed our

view that it was a fit and proper case to be resolved by a full bench of the

Court which we proposed to be convened according to law. We similarly

proposed that there was need for the full bench of the Court to interpret
 and determine the import of section 127 (2) of the Evidence Act, which Is

in parim ateria with section 115 (3) of the Child Act, No. 21 of 2009. The

proposal was forwarded to the Hon. Chief Justice for necessary action.

Gratefully, the Hon. Chief Justice sanctioned the proposal. He

convened a full bench of the Court which on 25.3.2014 heard the parties

along the proposed lines. The "Ruling"in thatregard was pronounced on

6.6.2014. After deciding on those grounds, in the end the full bench of the

Court remitted the matter to the three initial judges of the Court for

continuation of the hearing and determination of the appeal; hence the

present judgment.

The background facts of the case were briefly that on 23.8.2008 in

the morning, PW1 Yunusi d/o Serenak (the complainant) who was then 11

years old was sent by her sisters; Jenifer and Neema Sanare to a person

known as Godi to collect tomatoes. On her way she allegedly met the

appellant who ordered her to follow him to his home. Afraid, she obeyed

and followed him. On arrival there they entered in the house wherein the

appellant forcefully undressed her, and ordered her to stretch her legs and

he raped her. The complainant did not raise alarm because she was

warned to abstain otherwise he was going to cut her with a knife. She was
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released after the appellant had donewhat he set to do and she hastily

went back home. She related the incident to her sisters. PW3 Neema

Sanare inspected her female organ. On being convinced that she was

raped, and because the complainant had named the culprit, PW2 Japhet

Sanare made a follow-up and succeeded to apprehend the appellant. Both,

the latter and the complainant were sent to police. The police prepared a

PF3 and directed for the victim to be sent to hospital for medical

examination. Also, they prepared charges and charged the appellant in

court as it were.

On the other hand, the appellant denied the allegations. He

contended that he did not know PW1, and that PW2 invented the story

against him because he failed to give himmoney as was instructed by the

owner of the farm at which he was employed and lived.

The memorandum of appeal raised four grounds which may

conveniently be bridged into three of them as follows:-

1. That the evidence of the complainant was improperly received and

relied upon since its recording did not comply with section 127(2)

of the Evidence Act.

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 2. That generally, the prosecution did not prove the case against him

beyond reasonable doubt.

3. That the sentence of life imprisonment was excessive In the

circumstances of this case.

Mr. Njau argued those grounds generally, and supported the appeal.

He submitted in the first place that the evidence of PW1 was wrongly relied

upon on the ground that the voire dire test was badly conducted such

that it amounted to non-compliance with the provisions of section 127 (2)

of the Evidence Act. He relied on the case of Mohamed Sainyeye v.

Republic, Criminal Appeal No. 57 of 2010, CAT (unreported) in which he

said, the Court gave guidance on how to take the evidence of a child who

does not know the nature of the oath, meaning that both clauses (a) and

(b) of that section ought to have been complied with, which was not so in

the present case. That such non-compliance, he added, went to the

competence of the witness. Given such a situation, he pressed the Court to

expunge the evidence of PW1.

As a continuation of the above argument, Mr. Njau submitted that

once the evidence of PW1 is expunged from the record, then there would

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be no other evidence capable of sustaining conviction, which Is why, he

went on to submit, he supported the appeal. He did not elaborate.

On another point, Mr. Njau submitted that since the complainant was

alleged to have been 11 years of age, the sentence of life imprisonment

which was imposed on the appellant by the trial court and upheld by the

first appellate court was excessive because it was wrongly pegged under

section 130 (3) of the Penal Code. Mr. Njau pressed the Court to interfere

with the sentence in case it dismisses the appeal.

On his part, the appellant did not have anything to say, save for his

request that the Court allows his appeal on the basis of the grounds he

raised.

After carefully going through the proceedings and judgments of both

courts below, the grounds of appeal and the submission made by Mr. Njau,

we think that the first issue calling for decision is whether or not the

evidence of PW1 was properly received and relied upon.

Our starting point is the voire dire examination in respect of PW1

who, becauseshe was then 11 years of age, the reception of her evidence

was subject to the conditions obtaining under section 127 (2) of the
Evidence Act.Our immediate concern is the trial court's opening remark

before it proceeded to conduct the voire dire test. That remarkis at page

13 of the court record at whichshe remarked that:-

"Since the witness is a girl of 11 years old; the court wants to be

satisfied with the intelligence o f the witness, before starting the

hearing."

In our view, this remark shows a wrong legal footing on the ground that a

close reading of section 127(2) of the Evidence Act shows that the

concern of this provision in governing the competency of a child of tender

years is to observe that foremost, the court satisfies itself that a child of

tender years understands the nature o f the oath,a fact which was

overlooked by the trial court. That section provides that:-

"(2) Where in any criminal cause or matter a child o f tender age

called as a witness does not, in the opinion o f the court, understand

the nature o f an oathr his evidence may be received though not

given upon oath or affirmation, if in the opinion o f the court, which

opinion shall be recorded in the proceedings, he is possessed of

understands the duty of speaking the truth. "[Emphasis Is provided).

Jpso jure,\hQ other two conditions; that is to consider receiving the

evidence of such witness though not given upon oath or affirmation if the

said witness is possessed of sufficient intelligence to justify the reception of

his/her evidence, and understands the duty of speaking the truth ought to

have been considered only after the trial court could have beensatisfied

thatthe witness did not understand the nature of the oath.

Worse more, looking at the questions which were put to the child by

the court, none of them were leading the trial magistrate to discover if the

witness knew the nature of the oath. Of all the questions posed to the

child, only onehad bearance to the aspect of oath, that is, if she knew

the meaning of oath, for which her answer was in the negative. The

rest of the questions asked of her had nothing to do with the aspect of

testing whether she knew the meaning of an oath. In the circumstances,

the finding of the trial court that it was satisfied that the complainant did

not know the meaning of oath was baseless, therefore that the purported

voire dire was in effect as good as having not been conducted at all -See

the decision of the full bench in Kimbute Otiniel v. Republic, Criminal

Court observed that:-

"Where there is a complete omission by the trial court to correctly

and properly address itself on sections 127(1) and 127(2) governing

the competency o f a child of tender years, the resulting testimony Is

to be discounted."

Thus, the omission pointed out above destines us to the conclusion that

the evidence of PW1 was wrongly received and acted upon and we

accordingly discount it.Thus, the first ground is allowed.

The issue to follow is whether or not there was other evidence

capable of sustaining the appellant's conviction.

Besides the evidence of PW1, the other-evidence came from PW2

Japhet Sanare, PW3 Neema Sanare, PW4 No. E.4521 D/Cpl Hamis and

PW5 Dr. Elizabeth Hiza. While the evidence of PW2 was essentially that he

was the person who apprehended the appellant upon the information

given to him by PW1; that of PW3 was to the effect that she was among

the women who physically inspected the complainant's private organ

andfound that she was raped. However,she did not give details of what

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 convinced her that the complainant was raped. Worse more, no other

person from the group of "women" who inspected the complainant

appeared in court to testify. As such, the evidence of PW2 and PW3 Is

insufficient.

The other evidence came from PW4. This witness said he

interrogated the appellant, but that the latter denied the allegations. The

rest of his evidence was a replication of what he alleged to have been told

by PW1, which no doubt was anything but hearsay evidence, thus

deficient.

Finally is the evidence of PW5. This witness was clear that upon

examining the complainant's female organ she found that there were no

any bruises or any other kind of discharge. Also, the laboratory tests

showed that there was no any proof that the child was raped. Given that

PW5 had 17 years experience as a clinical officer, her expert opinion

deserves greater weight than that of PW3 who,as already pointed out did

not give details of the steps she took in her examination of PW1. In the

circumstances, this evidence too did not advance the prosecution case.

The last ground is that the sentence which was imposed by the trial

court and upheld by the High Court was excessive in the circumstances of

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 this case. We hasten to say that this ground too has merit for reasons we

are about to assign.

As already stated, the complainant was IX years old when she was

allegedly raped. That being the case,the sentence of life Imprisonment was

by any standards excessive.

The punishment for the offence of rape is enacted under section 131

(2) and (3) of the Penal Code. That section stipulates that:-

"(1) Any person who commits rape is, except in the cases provided

for in the renumbered subsection (.2), liable to be punished with

imprisonment for life, and in any case for imprisonment of not less

than thirty years with corporal punishment, and with a fine, and shall

in addition be ordered to pay compensation o f an amount determined

by the court, to the person in respect o f whom the offence was

committed for the injuries caused to such person.

(2) Not relevant

(3) Notwithstanding the preceding provisions o f this section whoever

commits an offence o f rape to a girl under the age o f ten

yearsshall on conviction be sentenced to life imprisonment"

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 Since the complainant in this case was above the age of 10 years as

aforesaid, the appropriate sentence ought to have been 30 years, hence

our finding that this ground too has merit and we allow it.

That said and done, we allow the appeal, quash the conviction and

set aside the sentence. We order that the appellant should forthwith be

released from prison unless he is otherwise being continually held for some

other lawful cause.

Dated at Dar es Salaam this 11th day of February, 2014.

M. C. OTHMAN
CHIEF JUSTICE

B. M. LUANDA
JUSTICE OF APPEAL

B. M. MMILLA
JUSTICE OF APPEAL

I certify that this4fe a true copy of the original.

J. R. KAHYOZA
REGISTRAR
COURT OF APPEAL